Steve Watson
Thursday, April 3, 2008

The American Civil Liberties Union has uncovered details pertaining to a secret Justice Department memo from October 2001 that reveals the Bush administration effectively suspended the Fourth Amendment where domestic counter terrorism operations are concerned.

The ACLU reports that the memo states the "Fourth Amendment had no application to domestic military operations." after 9/11. In other words, the DOJ gave the White House a green light to effectively shelve Constitutional protection against unreasonable searches and seizures in the wake of the terror attacks.

The memo was written by then deputy assistant attorney general John Yoo, also the co-author of the PATRIOT Act and author of the now notorious torture memos.

It is almost certain that Yoo’s memo was written to provide a legal basis for the NSA, a military intelligence agency, to begin its warrantless wiretapping program, which was initiated in the same month.

Just days after the memo’s delivery to the White House, Dick Cheney and other administration officials briefed four House and Senate leaders on the NSA’s secret terrorist surveillance program for the first time.

The existence of the 2001 memo came to light via a newly declassified March 2003 document from the Department of Justice’s Office of Legal Counsel (OLC) entitled Military Interrogation of Alien Unlawful Combatants Held Outside the United States, which makes reference to the previous memo.

The ACLU reports that this second memo takes the erosion of the Constitution beyond the Fourth Amendment and makes the case that the central due process guarantee of the Fifth Amendment, the protection against deprivation of life, liberty and property, can also be bypassed by the President.

"This memo makes a mockery of the Constitution and the rule of law," said Amrit Singh, a staff attorney with the ACLU. "That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable."

The March 2003 document was declassified by the Pentagon in response to a Freedom of Information Act lawsuit by the ACLU pertaining to the torture of prisoners in U.S. custody abroad.

In a footnote of the document it is written "Our office recently concluded that the Fourth Amendment had no application to domestic military operations", referring to a document titled Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

"The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power," said Jameel Jaffer, Director of the ACLU’s National Security Project. "The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

The AP reports that the Justice Department has refused to say if and when the legal opinion expressed in the two newly discovered memos was overturned internally, meaning that it could still be considered legally acceptable to forgo constitutional protections on the President’s say so.

The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

These two new memos provide more sections in the vast jigsaw of legislation that when pieced together makes up the complete overturning by the current administration of the protections provided to American citizens by the Constitution .

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